Corporate Governance: Need & Significance

in Nepalese Banking System

Paper to be presented to the International Conference on

‘Challenges of Governance in South Asia’ in Kathmandu, Nepal

December 15-16, 2008

Presented by:
Rajan Bikram Thapa
Deputy Director
Bank Supervision Department.

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 Corporate Governance: Need & Significance in Nepalese Banking System

Meaning and General Concept

Corporate governance is a combination of corporate policies and best practices adopted by

the corporate bodies to achieve its objectives in relation to their stakeholders. It is also the field of
economics, which studies the many issues arising from the separation from ownership and control.
The fundamental objective of corporate governance reforms is to enhance transparency and
transparency enhances accountability. It is widely recognized that transparency enhances trust
among the major players within the governance framework. Various definitions and principles
have been introduced to stabilize the corporate governance among corporate entities. The
definition presented by some institution is presented below.

 Corporate governance is the system by which companies are directed and controlled
(Cadbury Report-1992)

 Set of relationships between a company’s management, its boards, its shareholders and
other stake holders (OECD Principles)

In brief, corporate governance is a set of process a entity's culture, policies, laws and
institutional value that affect the way a corporation is directed, administrated or controlled. It is a
combination of corporate policies and best practices adopted by corporate bodies in achieving its
objectives in relation to their stakeholders. It aims to protect shareholder’s rights, to enhance
disclosure and transparency, to facilitate effective functioning of the board and to provide an
efficient legal and regulatory enforcement framework. It addresses the principal/agency problem
through a mix of company law, stock exchange rules and sub regulatory codes. It arises from high
profile corporate scandals, globalization and increased investor activism.

Significance of Corporate Governance in Banking Sector

Corporate governance is equally significance to all types of corporate institution.

Furthermore it is very crucial and essential element for the banking system because bank and
financial institutions depends on the Other Peoples Money (OPM). There may be a gap among
major stakeholder like owners, depositors and management. Very limited people have a right to
access in resources and decision. Due to the lack of transparency and adequate control mechanism,
there may be the chance of vested interest and moral hazard problems. It is a universal fact that the
higher degree of transparency contributes towards the maximizing shareholders value and
ensuring the fairness to rest of the shareholders. Corporate governance also enhances performance
of the corporation by motivating manager to maximize returns on investment, raising operational
efficiencies and ensuring long- term productive growth. Following key points help to emphasis the
significance of corporate governance especially in the banking sector.

1. Banking system stability is important for economic growth,

2. Good corporate governance (CG) is required in banks to achieve good CG in other firms.
3. Banks have wider stakeholders-government, regulators and most importantly depositors.
4. Promotes market confidence, helps to attract additional capital, and fosters market
discipline through good disclosure and transparency.

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 5. Helps ensure that company takes into account the interest of not only of a group of people
but also of the communities within which they operate. Those actions in turn help to ensure
that FIs are operating for the benefit of society as a whole.
6. Good corporate governance practices can strongly contribute to financial market
development and financial stability.

7.
Nepal implemented the Basel II from 2008 July in banking sector and good corporate
governance forms important part of Basel II. Therefore for complying the provision under
Basel II is very essential for banking sector. Basel Committee has introduced principles on
Enhancing Corporate Governance for Banking Organizations (2006 revised version of the principles
introduced in 1999)

Principles of Corporate Governance In Banking Sector

BIS (Bank for International Settlement) OECD (Organization of Economic Co-operation

and Development) and other different financial institutions has developed and presented the
various guidelines on enhancing corporate governance in banking sector but they do not diverge
from each other, OECD focus on the following critical elements of desirable corporate
Governance for the banks.

1. Board members should be qualified for their positions, have a clear understanding of their
role in corporate governance and be able to exercise sound judgment about the affairs of
the bank.
2. The board of directors should approve and oversee the bank’s strategic objectives and
corporate values that are communicated throughout the banking organization.
3. The board of directors should set and enforce clear lines of responsibility throughout the
organization.
4. The board should ensure that there is appropriate oversight by senior management
consistent with board policy
5. The board and senior management should effectively utilize the work conducted by the
internal audit function, external auditors, and internal control functions.
6. The board should ensure that compensation policies and practices are consistent with the
bank’s corporate culture, long-term objectives and strategy, and control environment
7. The bank should be governed in a transparent manner.
8. The board and senior management should understand the bank’s operational structure,
including where the bank operates in jurisdictions, or through structures, that impede
transparency (“know-your structure”)

Existing Laws and Regulation

Banking system of Nepal is gearing up for different business and economic environment.
Nepal Government and central bank are working to develop transparent, competitive and strong
financial sector. Till date, there have been several efforts towards building regulatory mechanism
for corporate governance. Among those several efforts following are the acts and regulations,

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which provide necessary guidelines to maintain corporate governance in the bank and financial
institutions.

1. Banks and Financial Institutions Act 2063

2. Directive 6 issued by the NRB
3. Companies Act 2063

Banks and Financial Institutions Act 2063 (BAFIA 2063)

(i) Conflict of Interest and Transparency
Section 48-Restriction to give loans to promoter, director, executive officer etc
Restriction on dealing with shares by the directors, Officers of the Bank(s.11)
Disclosure requirement for directors regarding conflict in appointment of auditors, shareholding
by family members, transactions between bank and family members (s.22)
Directors not to take personal benefit (s.24)
Disqualification of auditors and duty of the auditors (s.61 and s.63)
Remuneration of directors to be as provided in the articles of association (s.21)
(ii) Competent Key Personnel
Qualification of directors and chief executive officers (s.18,s.26)
Requirement to appoint professional director(s.13)

NRB Directive 6

Code of Conduct for Directors

Directors should not interfere in day-to-day operation of the financial institution.
If there is a conflict, director needs to inform the board before assuming office.
Directors should not involve in any activity which is against the interest of the company (conflict
of interest)
Chief executive should work fulltime.
Directors of one deposit taking institution cannot act as director of other FI.
Director Can not act as custodian or trustee of any of the customer
Director shall not misuse its position and should deal fairly
Director should keep up to date and accurate record of accounts and reports
Director should not use or misuse information received from clients for person benefit
Outlines the duties and responsibilities of the directors
Provides additional disqualification for the appointment of chief executive directors
Provides for code of conduct to be followed by the chief executive and other employees.

Audit Committee

Headed non executive director

Outlines responsibilities of the audit committee
Restriction on granting of loan to directors, shareholders, employees and firm related to such
persons. (Conflict of interest)

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Companies Act 2063
(i) Conflict of Interest and Transparency
Requirement to give beneficial interest on the shares(s.47)
Information required to be given on becoming substantial shareholder (s.50)
Shareholders having conflict are not qualified to vote in general meetings(s.70)
Director required to give information about transaction between company and him/her or close
relatives (s. 92)
Approval of general meeting required to enter transaction between company and director/its close
relatives (s.93)
Restriction on power of board to enter certain transaction (s. 105)
Restriction to give loans to directors and officers (s.101)
Financial disclosures to the shareholders (s.109)

(ii) Directors
Directors are made personally liable for any breach of the Act
Directors have fiduciary duty to act in the best interest of the company (s.99)
Directors are specific duty not to exceed their powers (s.103)
Requirement to appoint independent directors by public companies (s. 86)
Directors who breach reporting requirement under the Act are disqualified to become director
(s.89)
(iii) Audit
Listed companies having paid up capital of more than Rs. 3 crores need to have audit committee
An auditor is disqualified to be appointed for three consecutive years.(111)
A person working full time, or his/her partners are disqualified to be appointed as auditor (112)
(iv) Shareholders’ Protection.
Shareholder have right to inspect books of the company
Shareholders can sue on behalf of the company.(s.140)
Shareholders can request to appoint investigation officer (s.121)
Can prevent directors from exceeding their powers.(s.138)

Challenges
Before discussing the corporate governance of the Nepalese Banking system, it is
necessary to consider the adverse political situation of past two decades. Adverse conflict system
of the past hindered to develop transparency and system efficiency in government as well as
private sectors. Frequently changed government and different political unrest keep different
anomalies (problem) in governance issues. But, now, the Nepalese economy is rapidly integrated
with global economy with its outward oriented policies followed by membership of WTO,
SAFTA and BIMSTEC. Besides this banking system of Nepal is gearing up for different business
and economic environment with second phase of financial sector reform program. Nepal
Government and central bank are working to develop a transparent, competitive and strong
financial sector. On the other hand, last few years data gives contradictory result about industry
return of different sector of economy. The real sector of Nepalese economy is paralyze instead of
this profit of financial sector is unbelievably increased day per day. In this context following
challenges are seen in the banking sector.

Issues related to Regulators

Lack of institutional capacity for enforcement of laws, regulations

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Enforcement authorities themselves lack good governance.
Lack of accountability of employees of regulating bodies (need to have internal rules)
Lack of resources within regulator
Transparent and scientific licensing policy
Lack of political and leadership will
Court have frequently intervened in regulatory enforcement

Issues related to BOD

Board members are interested to use public deposits as their own assets which is against the
BAFIA 2063, article 48
Generally, Board members (non executive) are liking to use power like executive or, executive
director and executive chairman in the area of loan sanction, employee selection and daily
office activities which is again the against the BAFIA, 2063 article 24.
Board members are prohibited take loan from own company however, it is general practice to take
loan directly or, indirectly, Similarly, Board members are restricted to provide collateral for
loan purpose for own or, for others however, they try to do directly or indirectly
Board members are inclined to authenticate the minutes after finishing the vested interest
The company enjoying the practice of CEO and Chairperson by the same gentle man are ahead in
noncompliance activities
Big houses running many same nature business are manipulating public deposits and transferring
the fund within the group in their own interest
Bank, FIs running by non professional are in severe noncompliance practices*

Conclusion
In conclusion corporate Governance is very crucial for each and every organization. Corporate
Governance framework should ensure the strategic guidance of the company, the effective
monitoring of management by the board and the board's accountability to the company and the
shareholders. Good corporate Governance should provide proper incentives for the board and
management to pursue objectives in the interest of the company and shareholders and should
facilitate effective monitoring. The responsibility for good governance lies within the bank’s and
FIs’ senior management. Regulators can only facilitate but not ensure improved governance. Last
but not least, I would like to say SELF REGULATION IS BEST REGULATION.